Clay v. United States

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The Supreme Court’s opinion in Ali’s case was per curiam, or “for the Court,” meaning that the identity of its actual author was not made public. All of the members of the Court other than Justice Thurgood Marshall (who excluded himself for unstated reasons) participated in the decision in Ali’s case, including Chief Justice Warren Burger and associate justices Hugo Black, William O. Douglas, John Marshall Harlan II, William J. Brennan, Jr., Potter Stewart, Byron White, and Harry A. Blackmun—the latter being the most recent addition to the Court in June 1970. Ali’s was among the last of the cases heard by Justices Black and Harlan prior to their retirement from the Supreme Court later in 1971.

Indeed, the Supreme Court that decided Ali’s case was a Court in transition. President Richard Nixon had appointed Warren Burger to replace Earl Warren as chief justice in 1969, thereby signaling the end to one of the most progressive—if not radical—eras in the Court’s history. During Warren’s sixteen years in the Court’s center seat, the justices moved self-consciously and decidedly to the left, rigorously endorsing sweeping federal regulatory power in the civil rights sphere while adopting similarly robust views of the limits that the federal Constitution placed on state and local governments, especially where racial discrimination or the rights of criminal defendants were at issue. This was the Court that had decided Brown v. Board of Education (1954), holding that race-based segregation in public schools violated the equal protection clause; Mapp v. Ohio (1961), holding that evidence obtained in violation of the Fourth Amendment must generally be excluded from admission at trial; Gideon v. Wainwright (1963), holding that the Sixth Amendment right to counsel requires that states provide attorneys to indigent defendants; Griswold v. Connecticut (1965), holding that the U.S. Constitution protects a right to privacy; Miranda v. Arizona (1966), requiring that defendants be notified of their right to speak to a lawyer and holding that statements obtained in the absence of such notification were inadmissible in court; and a host of other lesser-known but no-less-important precedents. Together with Justices Black, Douglas, and Brennan, Warren formed a liberal bloc that controlled much of the Court’s agenda throughout the 1960s—especially from 1962 through Warren’s departure, thanks to the additions of Arthur Goldberg, as succeeded by Abe Fortas in 1965, and Thurgood Marshall. Even the more “conservative” justices on the Warren Court—Harlan, Stewart, and White—were, by modern-day standards, moderates who routinely joined their more liberal brethren.

Nixon’s victory in the 1968 presidential election—after a campaign that was highly critical of the Court and vowed to restore “law and order”—spelled the beginning of the end for this coalition. Within three years of taking office, Nixon was able to make four appointments to the Court—replacing Warren with Burger, Fortas with Harry Blackmun, Black with Lewis F. Powell, Jr., and Harlan with William H. Rehnquist. Each of these appointments moved the Court further to the right. In that sense, the decision in Clay proved to be a relic of a soon-to-be forgotten era, in which unanimous decisions invalidating criminal convictions such as Ali’s were commonplace.